Date: 28-11-2019
Business: None present for plaintiff.
Adv. Miss electricwala for defendant no 1 to 3
She tendered registered NM 4308/19 t.o.r.
Copy is already served to plaintiff.
Adv. Miss Chaitra Rao for defendant no 9 and 10 present.
Defendant no 1 to 3 tendered draft NM t.o.r.
O- Leave granted to registered it.
Copy be served to other side.
Adjourned for reply and service to 16.12.2019.
Next Purpose: NOTICE OF MOTION
Next Hearing Date: 16-12-2019
Date: 16-12-2019
Business: None present for plaintiff.
Adv. Miss Electriwala for defendant no 1 to 7 present.
She tendered registered NM 4602/19.
Adv. Chaitra Rao for defendant no 8 to 10 present.
Adjourned for reply as last chance to 22.01.2020
Next Purpose: NOTICE OF MOTION
Next Hearing Date: 22-01-2020
Date: 22-01-2020
Business: Adv. Bhagyashree Mangale for plaintiff present and filed reply to NM 4602/19.
Adv. Sakina Electricwala for defendant No 1 to 3 present.
Plaintiff present.
Copy of reply given to defendant.
Adv. Chaitra Rao for defendant No. 9 and 10 present.
Say filed by plaintiff on NM No.4308 of 2019
KB
LO
Heard advocate for plaintiff and defendant Nos.1 to 3 in Notice of Motion No.4308 of 2019.
Matter is adjourned for order to 23.01.2020.
Next Purpose: NM ORDERS
Next Hearing Date: 23-01-2020
Date: 23-01-2020
Business: Adv. Electricwala for defendant Nos.1 to 3 present.
Order passed below Notice of Motion No.4308 of 2019
Perused notice of motion, affidavit in support of it, reply of plaintiff on notice of motion itself and roznama of proceeding. Heard respective counsel for parties.
Notice of motion is taken out by the defendant Nos.1 to 3 for setting aside order 19.07.2019 in respect of proceeding of suit without their written statement, condonation delay caused in filing written statement and to take the same on record and also for reliefs deem fit and proper.
It is the contention of defendant Nos.1 to 3 that writ of summons was issued to them on 22.05.2018 and delivered upon them on 29.05.2018. Thereafter, defendants engaged the advocate so as to advise them and appear in the present matter. They have been vigilant and diligent in wanting to defend present case. The delay caused is attributable to their advocate who did not represent them to the best of his ability. Therefore, they engaged new advocate to represent them and want to file written statement. They have substantial and valid defence in relation to the claims made by the plaintiff. They will also raise triable issue. In the set of facts they prayed in above terms.
Plaintiff opposed notice of motion on the count that there is delay of 445 days and notice of motion is not maintainable and liable to be dismissed. Accordingly, made prayer in that regard.
Before adverting to the facts I would like to mention that it is a settled law that Order VIII Rule 1 of CPC is not mandatory and in specific circumstances written statement can be accepted with reasons. It is also held that in an adversarial system, no party should be denied an opportunity in participation of the justice dispensation system (Salem Bar Association V/s Union of India 2003 AIR SCC 189 and Zolba V/s Keshav 2008 AIR SCC 2099). In view of this legal position, now, I consider notice of motion.
It is clear that writ of summons was ordered to be served upon defendant Nos.1 to 3 at their new address in pursuance of order dated 22.03.2018. These defendants appeared before the Court on 12.06.2018 through their Adv. Neel Gala. They attributed delay caused in filing of written statement to their earlier advocate and claimed that he has not advised them in that respect. For the fault of any on the part of advocate of the parties, parties should not suffer. These defendants have shown their bonafide by annexing written statement to present notice of motion. Thus, it is clear that they do not want to protract the trial of the mater. Therefore, in the fact of matter condoning delay cased in taking out present notice of motion to advance justice and in the interest of justice and fair trial I am inclined to allow present notice of motion subject to imposition of costs upon defendant Nos.1 to 3. Hence, pass following order-
ORDER
1. Notice of Motion No.4308 of 2019 is allowed and made absolute in terms of prayer clauses (a) to (c) subject to payment of costs of Rs.5000/- (Rupees Five Thousand only) to the plaintiff within period of two weeks from the date of this order.
Defendant Nos.1 to 3 are at liberty to deposit the costs payable to the plaintiff in the Court.
2. After payment of costs, written statement of defendant Nos.1 to 3 be taken on record and marked as exhibit.
3. Accordingly, notice of motion is disposed off.
Adjourned for direction to 07.02.2020.
Nature Of Disposal: ALLOWED
Disposal Date: 23-01-2020